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Firm Dayalal Meghji and Co. and ors. Vs. State of Madhya Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 177 of 1961
Judge
Reported inAIR1962MP342; [1962(5)FLR478]
ActsMinimum Wages (Madhya Pradesh Amendment and Validation), Act, 1961; Constitution of India - Articles 245, 246(2), 254, 254(1) and 254(2); Minimum Wages Act, 1948 - Sections 5, 7, 9, 19(1) and 31A
AppellantFirm Dayalal Meghji and Co. and ors.
RespondentState of Madhya Pradesh and ors.
Appellant AdvocateA.P. Sen, ;B.V. Shukla and ;A.H. Saifi, Advs.
Respondent AdvocateK.A. Chitaley, ;G.M. Chaphekar and ;H.L. Khaskalam, Govt. Adv.
DispositionPetitions allowed
Cases ReferredSundararamier and Co. v. State of Andhra Pradesh
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - 306 to 309-xvi-58, dated the 30th december, 1958, shall be and shall always be deemed to.....dixit, c.j.1.this order will also govern miscellaneous petitions nos. 227 242, 243 and 297, all of 1961. 2. in these five cases under article 226 of the constitution, the petitioners, challenge the vires of the minimum wages (madhya pradesh amendment and validation) act, 1961, (hereinafter referred to as the validation act), and seek a declaration that the said act is constitutionally invalid, ultra vires and unenforceable, and pray that a suitable direction be issued to the opponents for bearing them from giving effect to the validation act in any manner whatsoever. 3. the matter arises thus. in the former state of madhya pradesh, which comprised the mahakoshal region of the new state of madhya pradesh, the minimum wages for the workers in concerns owned by the petitioners were first.....
Judgment:

Dixit, C.J.

1.This order will also govern Miscellaneous Petitions Nos. 227 242, 243 and 297, all of 1961.

2. In these five cases under Article 226 of the Constitution, the petitioners, challenge the vires of the Minimum Wages (Madhya Pradesh Amendment and Validation) Act, 1961, (hereinafter referred to as the Validation Act), and seek a declaration that the said Act is constitutionally invalid, ultra vires and unenforceable, and pray that a suitable direction be issued to the opponents for bearing them from giving effect to the Validation Act in any manner whatsoever.

3. The matter arises thus. In the former State of Madhya Pradesh, which comprised the Mahakoshal region of the new State of Madhya Pradesh, the minimum wages for the workers in concerns owned by the petitioners were first fixed in 1951 by notifications issued in 1951. These rates were revised in 1956 and 1957. After the formation of the new State of Madhya Pradesh, the Government constituted under Sections 5 and 6 of the Minimum Wages Act, 1948, (hereinafter referred to as the principal Act), an Advisory Board. The proposals published by the Government for fixation of the rates of minimum wages were considered by the Advisory Board and ultimately the Government published Notifications Nos. 306 to 309 XVI-58 dated the 30th December 1958 bringing into force the rates of minimum wages set out therein as from the 1st January 1959. These notifications were struck down by this Court as invalid and inoperative in Anand Transport Company (Private) Ltd. v. The State of Madhya Pradesh, MP No. 150 of 1959 (MP), Corporation of the City of Jabalpur v. State of M. P., MP No. 66 of 1959 (MP) and Narottamdas v. P. B. Gowarikar, 1961 MP LJ 302 : (AIR 1961 Madh Pra 182) . It was held in those cases that the notifications' as initially fixing the rates of minimum wages were void and inoperative as the rates of minimum wages had already been fixed and that viewed as notifications of the rates of wages on revision, they were illegal inasmuch as the revision was not in accordance with Section 5(1)(b) of the principal Act; that the notifications about the proposals for fixation of minimum rates were not in compliance with Section 5(1)(b) as they did not specify any date for the receipt of representations and consequently the notifications settling the rates of minimum wages on the basis of those proposals were unsustainable; and that the notifications wore invalid also on the ground that they gave retrospective operation to the rates of minimum wages fixed by them, as the principal Act did not authorize the issue of a notification with retrospective effect. In the case of Narottamdas, 1961 MP LJ 302 ; (AIR 1951 Madh Pra 182) (supra) it was also held that the Advisory Board constituted by the Government was not validly constituted in conformity with the requirements of section 9 of the principal Act, and consequently a notification fixing minimum rates of wages issued after consultation with such a Board was invalid.

4. The notifications having been struck down by this Court, the State Legislature enacted the Minimum Wages (Madhya Pradesh Amendment and Validation) Act, 1961. It is styled as 'An Act further to amend the Minimum Wages Act, 1948, (No. XI of 1948), in its application to the State of Madhya Pradesh and to validate fixation and revision of minimum wages in certain scheduled employments'.

This Act amended some sections of the principal Act and also inserted new provisions. The material provisions of the Validation Act are Sections 5 and 20 by which the following two new sections were inserted in the principal Act :

'9A. No order of the State Government nominating any person as the Chairman or a member of the Advisory Board or a Committee or Sub-committee shall be called in question in any manner and no act or proceeding before any Board, Committee or Sub-committee shall be called in question in any manner in any Court of Law on the grounds merely of the existence of any vacancy in or of any defect or irregularity in the Constitution of, such Board, Committee or Sub-committee.'

'31A. (1) The rates of minimum wages fixed or revised in respect of employments Nos. 2, 3, 5, 6, 7, 8 & 11 in Part 1 of the Schedule to the Principal Act, under the Government of Madhya Pradesh, Labour Department Notification Nos. 306 to 309-XVI-58, dated the 30th December, 1958, shall be and shall always be deemed to have been validly fixed or revised and shall be deemed to have come into force on the date mentioned in the said notifications, notwithstanding any judicial decision to the contrary or any defect or irregularity in the constitution of the Advisory Board under Section 7 of the Principal Act read with Section 9 thereof or publication of the notifications in the Gazette or non-compliance with any other requirement of law and shall not be called in question in any Court merely on the ground that there was failure to comply with the provisions of the Principal Act.

(2) The rates of minimum wages fixed or revised in respect of employment specified in part II of the Schedule to the Principal Act under the Government of Madhya Pradesh, Labour Department Notification No. 7758-XVI dated the 31st December 1959, shall be and shall always, be deemed to have been validly fixed or revised notwithstanding any defect or irregularity in the constitution of the Committee under Section 5(1)(a) of the Principal Act read with section 9 thereof, or publication of the notification in the Gazette or non-compliance with any other requirement of law and shall not be' called in question in any court merely on the ground that there was failure to comply with the provisions of the Principal Act :

*******

5. In the petitions the applicants have raised grounds challenging the constitutionality of the Validation Act as a whole and in particular of Sections 9A and 31A inserted in the principal Act, But before us, learned counsel appearing for the petitioners concentrated their attach on Section 31A with the reservation that if need be, the petitioners would challenge the constitutionality of other provisions of the Validation Act on a proper occasion in other cases. The contention put forward on behalf of the petitioners is that the Validation Act has not in any Way improved the situation and that the notifications dated the 30th December 1958, which were struck down by this Court in Narottamdas' case, 1961 MP LJ 302 : (AIR 1961 Madh Pra 182) (supra) and other cases continue to be null and void now as before the Validation Act. It was urged that the-State Legislature was not competent to amend the- Principal Act and, therefore, the Validation Act was ultra vires and constitutionally invalid.

The further argument was that as the principal Act prescribed a mode of fixing and revising the minimum rates of wages under Section 5 thereof, the State Legislature was not competent to prescribe any other mode and the validation of the notification dated the 30th December 1958 amounted to fixation or revision of the rates of minimum wages in contravention of the principal Act; that as the State Government functioned as a delegate under the principal Act in relation to the scheduled employment, any fixation of minimum wages by the State Government had to be in conformity with the principal Act; that as to December 1958 the minimum wages could be fixed only after complying with the provisions of Sections 5, 7 and 9 of the principal Act and not contrary to them and as the Validation Act did not give to the Government any power, as from 30th December 1958 or from a point of time anterior to it, to fix minimum wages without the necessity of following those provisions, the impugned notifications could not be referred to any power and that in consequence the validation provision contained in Section 31A was altogether ineffective for validating the notification dated the 30th December 1958. It was further urged that the State Legislature was not competent to enact Section 31A with a view to override the judgment delivered by this Court in its jurisdiction under Article 226 of give to the rates of minimum wages retrospective effect contrary to Section 5 of the principal Act; and that the validation of the notification by Section 31-A was tantamount to the fixation of minimum wages contrary to the provisions of Sections 5, 7 and 9 of the principal Act and in violation of the petitioners' fundamental rights under Article 19(1)(g) of the Constitution.

6. In answer, Shri Chitale, learned counsel appearing for the opponents, submitted that the impugned legislation was within the competence of the State Legislature as it dealt with matters falling under entry No. 24 of the Concurrent List that in the exercise of its legislative power under Article 246(2) read with Article 254 it was open to the State Legislature to amend an earlier law made by Parliament or an existing law with respect to any of the matters enumerated in the Concurrent List so as to declare that within the local area of its legislative authority the law shall be as enacted by itself and not as enacted by parliament; that in doing so, the State Legislature did not in any sense amend a law made by parliament or an existing law so as to affect the terms or operation of the parliamentary enactment or the existing law in areas over which the State Legislature had no control that the Validation Act did not directly amend any provision of the principal Act; and that by amending the principal Act fn its application to the State of Madhya Pradesh it merely declared how certain provisions of the principal Act shall have effect in the State.

Learned counsel proceeded to say that the validation of the notifications made by Section 31A was legally effective even if there was no provision giving to the Government at any time the power to fix minimum wages without following the provisions of Sections 5, 7 and 9 of the principal Act, as the State Legislature had always the power under entry No. 24 of the Concurrent List to fix minimum wages in a mode other than that prescribed by the principal Act. It was also said in the alternative that Section 31A constituted an independent and separate Act fixing minimum wages at the rate and from the time mentioned in the notifications dated the 30th December 1958; that the Legislature could pass a retrospective legislation fixing minimum wages at a certain rate from a past date; that as the wages notified on 30th December 1958 were in fact fixed in consultation with the representatives of employers and employees, there was no abridgement of any right of the petitioners under Article 19(1)(5) when Section 31A was enacted; that the minimum wages mentioned in the notifications dated the 30th December 1958 would be the minimum wages in respect of the employments concerned from the date mentioned in the said notification. Learned counsel further contended that Section 31A did not in any way affect the powers of this Court under Article 226 of the Constitution, and the power of the Legislature to validate the notifications and nullify the judgment of this Court was ancillary or subsidiary to the power to make laws with respect to the. matters within its field.

7. On the arguments put forward by the learned counsel appearing for the parties, the first question that arises for consideration is as to the legislative competence of the State Legislature to enact the Minimum Wages (Madhya Pradesh Amendment and Validation) Act, 1961. This Act is clearly a legislation with respect to matters enumerated in entry No. 24 in the Concurrent, List and both Parliament and the State Legislature have power to make laws with respect to those matters. It is not disputed that a State Legislature has power to enact a law providing for the fixation of rates of minimum wages in certain employments. What is, however, contended is that the Validation Act is not a complete and independent enactment dealing with the fixation and revision of minimum wages, but that it is a measure amending the principal Act, which is a Central Act, and the State Legislature has no power to make a law repealing, or adding to or amending or varying the principal Act. The argument proceeds on a misconception of the effect and operation of the Validation Act on the principal Act. That the. State Legislature has no power to repeal a law passed by Parliament or an existing Central law even though it be a law with respect to one it the matters enumerated in the Concurrent List, is axiomatic. Article 246 or Article 254 of the Constitution gives no such power to the State Legislature. Indeed Article 254 assumes the negation of this power when it prescribes the rule to be observed when there is inconsistency between a law made by the Legislature of a State and a taw made by Parliament which Parliament is competent to enact, or arc existing law with respect to one of the matters enumerated in the Concurrent List. Clause (1) of this article lays down that if any provision of a State law is repugnant to any provision of a law made by Parliament or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then subject to the provisions of Clause (2) the law made by Parliament, whether passed before or after the law made by the State Legislature, or, as the case may be, the existing law, shall prevail and the State law shall, to the extent of the repugnancy, be void. This rule is modified by Clause (2) in the case of a law made by the State Legislature with respect to one of the matters enumerated in the Concurrent List and which having been reserved for the consideration at the President, has received his assent. If such a State law contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then the State law prevails in the State. The proviso to Clause (2), however, gives to Parliament the power to enact at any time any law adding to, amending, varying or repealing a State law relating to a matter mentioned in the Concurrent List. In the absence of this proviso, even the Parliament would not have had the power to repeal a law passed by the State Legislature even though it is a law with respect to one of the matters enumerated in the Concurrent List. The scope and effect of Article 254(2) has been explained by the Supreme Court in Tika Ramji v. State of U. P. (S) AIR 195S SC 6/6. In that case, it has been observed at page 705 :

'Article 254(2) deals with repugnancy between the provisions of a law made by the State Legislature and those of an earlier law made by Parliament or an existing law with respect to one of the matters enumerated in the Concurrent List and provides that the law so made by the State Legislature shall, if it has been reserved for the consideration of the President and has received his assent, prevail in the State.

A proviso, however, has been attached thereto which says that 'nothing in Article 254(2) shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the State Legislature'. Ordinarily Parliament would not have the power to repeal a law passed by the State Legislature even though it be a law with respect to one of matters enumerated in the Concurrent List.

It is argued for the State of U. P. that, under the proviso to Article 254(2), the power to repeal a law passed by the State Legislature is Incidental to enacting a law relating to the same matter as is dealt with in the State legislation, and that a statute which merely repeals a law passed by the State Legislature without enacting substantive provisions on the subject would not be within the proviso, as it could not have been the intention of the Constitution that in a topic within the concurrent sphere of legislation there should be a vacuum.

There is considerable force in this contention, and there is much to be said for the view that a repeal simpliciter is not within the proviso. But it is unnecessary to base our decision on this point, as the petitioners must, in our opinion, fail on another ground. While the provisoto Article 254(2) does confer on Parliament a power to repeal a law passed by the State Legislature, that power is, under the terms of the proviso, subject to certain limitations. It is limited to enacting a law with respect to the same matter adding to, amending, varying or repealing a 'law so made by the State Legislature.'

The law referred to here is the law mentioned in the body of Article 254(2). It is a law made by the State Legislature with reference to a matter in the Concurrent List containing provisions repugnant to an earlier law made by Parliament and with the consent of the President. It is only such a law that could be altered, amended or repealed under the proviso.'

Article 254(2) thus plainly shows that when a State Legislature makes a law with regard to a matter falling in the Concurrent List, then an earlier law of Parliament with respect to the same matter is not invalidated or amended in any way. The laws, even if inconsistent, co-exist and prevail subject to the rule prescribed by Clause (2). The question whether the two laws are inconsistent is not a question as to the legislative powers of Parliament and of the State Legislature. The question of an alleged or suggested inconsistency is one not between powers but between laws made under powers.

8. Now, the Validation Act is styled as 'an Act further to amend the Minimum Wages Act, 1948, (No. XI of 1948), in its application to the State of Madhya Pradesh and to validate fixation and revision of minimum wages in certain scheduled employments.' It no doubt uses language giving the impression that it is a law adding to, amending or varying certain sections of the principal Act.But it is not an enactment which is strictly mandatory in its nature adding to or varying the operation of the principal Act in the entire area of its extent. The Validation Act does not attempt to alter the character of the principal Act and to declare that the principal Act now would be different from what it has been, it is an independent Act of the State Legislature declaring how certain provisions of the principal Act shall have effect in the State of Madhya Pradesh. This is clear from the very significant words 'in its application to the State of Madhya Pradesh' occurring in the title of the Validation Act. The real character of the Validation Act cannot be determined by the use therein of such words as 'amendment', 'insertion', 're-numbering'. It is the effect of the Validation Act rather than the form that is the decisive factor. The effect of the Validation Act would have bean no different if instead of being cast in the present form it had been cast in a form saying that the relevant provisions of the principal Act shall have effect in the State of Madhya Pradesh subject to the specified additions, or variations. It may, however, be mentioned that there are numerous Central Acts with respect to matters falling in the Concurrent List which have been modified by various State Legislatures in their application to the States by using the form of enactment such as the one before us. But they have never been understood as repealing, amending, affecting the operation of the Central Act concerned in areas over which the State Legislature has no authority to legislate. In spite, therefore of the language of the Validation Act, it cannot be said to be an enactment directly amending or repealing any provision of the principal Act. It only declares how certain provisions of the principal Act shall have effect within the local area of the legislative authority of the State Legislature. The principal Act and the Validation Act, which was reserved for the consideration of the President and, which received his assent, both co-exist in the State subject to the rule laid down in Clause (2) of Article 254. The Validation Act Was within the legislative competence of the State Legislature and the argument that it was not so, is not sound.

9. Turning to the next question about the validity of Section 31A added to the Principal Act by the Validation Act, it is first necessary to note what precisely Section 31A purports to do. It says that the rates or minimum wages fixed or revised under notifications dated 30th December 1958 'shall be and shall always be deemed to have been validly fixed or revised and shall be deemed to have come into force on the date mentioned' therein notwithstanding any judicial decision to the contrary or any defect or irregularity mentioned in the provision. The use of the expression 'shall be and shall always be deemed to have been validly fixed or revised' clearly shows that Section 31A purports to validate the minimum wages which had been notified on 30th December 1958. It does not seek to fix certain rates of minimum wages as from a date in the past without any reference whatsoever to the minimum wages notified on the 30th December 1958 which had been declared to be invalid by us in the case of Narottamdas, 1961 MP LJ 302 : (AIR 1961 Madh Pra 182) (supra). What has been attempted to be done is the validation of rates of minimum wages as from a past date. Now, the rates of minimum wages, which has been notified on 30th December 1958, was an executive act of the Government purporting to be done under Section 3 of the Principal Act after following the procedure prescribed by the principal Act for fixing and revising minimum wages, This act of fixation of minimum wages from the date mentioned in the notifications was declared to be invalid in Narottamdas' case 1961 MP LJ 302 : (AIR 1961 MP 182) (supra) and in other cases on account of certain infirmities. The fixation of minimum wages under the notification dated the 30th December, 1958 was not any act done under any State law. Therefore what Section 31A purports to do is to validate an invalid act done under a Central Act and which was required to be done in conformity with the procedure laid down in Section 5 of the principal Act. The question, therefore, arises whether the State legislature has the power to validate an act done under a Central Act or a law made by Parliament.

10. Now, it is well settled that the power of validation by subsequent legislation of any defective law or act done under any Act is subsidiary or ancillary to the power to deal with the particular subject specified in lists I, II, and III of the Seventh Schedule of the Constitution (See United Provinces v. Atiqa Begum; AIR 1941 FC 16; Piare Dusadh v. Emperor AIR 1944 FC 1 : and Mst. Jadao v. Municipal Committee, Khandwa AIR 1961 SC 1486. The power of validation is included in the power of legislation. It follows from this principle that an invalid act under an Act can be validated by subsequent legislation of the authority which enacted the Act in the exercise of its legislative powers conferred by the entries in the Lists. The fixation of minimum wages notified on 30th December 1958 being an act of the Government under the principal Act, which is a Central Act, the invalidity in that fixation could be validated only by Parliament.

In this connection, it is pertinent to note that it was by an Act of Parliament that the rates of minimum wages that had been fixed by certain Governments during the period from 1st April 1952 and 20th May 1954 in the belief or purported belief that such rates were being fixed under Sub-clause (i) of Clause (a) of Sub-section (1) of Section 3 were validated. This was done by inserting Section 31 in the Minimum Wages Act, 1948, by the Minimum Wages (Amendment) Act, 1954. This validation became necessary as originally under Sub-clause (i) of Clause (a) of Sub-section (1) of Section 3 the appropriate Governments were required to fix the rates of minimum wages in the employments listed in Part-I of the schedule before 31st March 1952. Some Governments had, however, fixed the rates after 31st March 1952. They had no validity in law. Section 31, was, therefore, inserted to validate this fixation of rates done after 31st March 1952. It is true that Under entry No. 24 of List III, the State Legislature has the power to make a law for the fixation or revision of minimum wages. It could have under this legislative power made a law giving to the Government the power to fix and revise minimum wages without the necessity of following the procedure prescribed by the principal Act. But no such State law was in existence at the time when the rates of minimum wages were notified on 30th December 1958. It is noteworthy that the Validation Act nowhere provides that Sections 5, 7 and 9 shall have effect in the State in a certain manner so as to give to the Government the power to fix or revise minimum wages in a mode permitting all the infirmities on which the notification dated 30th December 1958 was held to be invalid in the case of Narottamdas, 1961 MP LJ 302 : (AIR 1961 MP 182), (supra) and other cases or shall be deemed always to have that effect from 30th December 1958 or from any date anterior to it. An invalid or illegal act can be validated by a subsequent statute of the competent legislative authority if the validating statute authorises the doing of the act at the time when it was done. In the absence of such authorisation for the doing of the act, the validation would be futile as that would only amount to an attempt to exercise a power which ex hypothesi did not exist.

11. Here, Section 31-A merely validates the rates of minimum wages notified on 30th December 1958. It did not confer on the Government, as from 30th December 1958 or a date anterior to it, the power to fix minimum wages in a manner or mode which did not involve compliance of Sections 5, 7 and 9 of the principal Act. The result is that the fixation of minimum wages notified on 30th December 1958 declared by us to be invalid is not referable to any power. In the absence of such power, the validation of the rates of minimum wages notified on 30th December 1958 is altogether ineffective and nothing but a repetition of the invalid act. The principal authority relied on by learned counsel for the petitioners was J. K. Jute Mills Co. Ltd. v. State of U.P. AIR 1961 SC 1534. Reliance was also placed on the decisions of the Allahabad High Court referred to in the Supreme Court case. These cases illustrate the principle that for the validation of any invalid act done under an Act it is essential thai the subsequent validating statute must confer power for the doing of the act at the time it was done, and that the power should also be exercised.

12. What has been stated above also answers the alternative argument of Shri Chitale, learned counsel appearing for the State, that Section 31-A is not a validating provision but is an independent provision fixing certain rates of minimum wages retrospectively from 1st January 1959, that is the date mentioned in the notifications dated the 30th December 1958. As we have stated earlier, Section 31-A is not a provision fixing certain rates of minimum wages quite independently of the notifications dated the 30th December 1958 or of the provisions of the principal Act. It purports to validate the rates of minimum wages fixed under the notifications dated the 30th December 1958 when it says that those rates 'shall be and shall always be deemed to have been validly fixed or revised'. It is important to note that the reference to the rates of minimum wages in Section 31-A is to the rates of minimum wages fixed 'under' the Government of Madhya Pradesh, Labour Department Notification....... dated the 30th December 1958'. The word 'under' underlined (herein' ') by us is very significant. It implies the rates of minimum wages fixed pursuant to or in accordance with and controlled by the notifications dated the 30th December 1958 and the principal Act under which the notifications were issued. The language of Section 31-A is quite different from the language of Section 2 of the Khandwa Ginning and Pressing Cotton Tax Validating Act, 1938, to which a reference was made by Shri Chitale, learned counsel for the State. That provision ran as follows :

'2. Notwithstanding anything contained in the Central Provinces Municipal Act, 1903, or the Central Provinces Municipalities Act, 1922, or any decree or order of a civil Court, the tax on the trade of ginning and pressing cotton by means of steam or mechanical process within the limits of the Khandwa municipality which was imposed by Notification No. 2639-1298-VIII, dated the 21st November, 1922, shall be deemed to have been legally imposed from the date of its imposition to the date on which this Act comes into force.

Explanation--All decrees or orders of a civil Court directing a refund of the tax already recovered by the committee of the said municipality or restraining the committee from recovering the tax shall be deemed to have no legal effect.'

It was said that in Firm Radhakishan Jaikishan v. Municipal Committee, Khandwa, 1940 Nag LJ 638, the Explanation to Section 2 was held to be invalid on the ground that it conflicted with Section 109 of the Code of Civil Procedure and with Order 45 Rule 15 C. P. C. but no doubt was felt about the legal efficacy of Section 2 as a provision validating the tax on the trade of ginning and pressing cotton which had been declared invalid by the Privy Council in Firm Radha Kishan Jaikishan v. Municipal Committee, Khandwa, AIR 1934 PC 62, on the ground that it had not been imposed in conformity with the provisions of the C. P. Municipalities Act, 1922. It will be seen that though the preamble of the Khandwa Ginning and Pressing Cotton Tax Validating Act, 1938, stated that it was an Act to validate the imposition of the tax, Section 2 did not purport to validate the imposition. It merely created a fiction that 'the tax on the trade of ginning and pressing cotton. ..... .which was imposed by Notification. ......... dated the 21st November, 1922, shall be deemed to have been legally imposed from the date of its imposition to the date on which this Act comes into force.' The fictional imposition of the tax was quite independent of the provisions of the C. P. Municipal Act, 1903, or the C. P. Municipalities Act, 1922, or any notification issued thereunder. This is clear from the opening words of Section 2, namely, 'Notwithstanding anything contained in the Central Provinces Municipal Act, 1903, or the Central Provinces Municipalities Act, 1922.' There was no validation of any tax imposed under the 'Notification dated the 21st November 1922.' The tax which was fictionally imposed was referred to as the tax 'which was imposed by Notification. ...... .dated the 21st November 1922', that is to say, the tax which was factually brought into existence and imposed by the notification. There is thus no analogy between Section 2 of the Khandwa Ginning and Pressing Cotton Tax Validating Act, 1983, and Section 31-A of the Principal Act. In our opinion, on the language of Section 31-A, it is impossible to read it as a provision fixing the rates of minimum wages quite independently of the provisions of the principal Act or of the notifications dated the 30th December, 1958. In this View of the matter, it is unnecessary to consider whether, regarded as an independent provision for fixing minimum wages, Section 31-A violates the fundamental right guaranteed under Article 19(1)(g) of the Constitution.

13. There is no force in the contention of the learned counsel for the petitioners that the State Legislature was not competent to enact Section 31-A with a view to nullify the judgment given by this Court in its jurisdiction under Article 226 in the case of Narottamdas 1961 MP LJ 302 : (AIR 1961 MP 182) (supra). A similar argument was advanced before the Supreme Court in the case of State of Orissa v. B. K. Bose CA Nos. 525 and 526 of 1960 D/- 22-12-1961 : (AIR 1962 SC 945). Rejecting this argument, the Supreme Court said :

'This argument is obviously untenable, for it erroneously assumes that the judgment delivered by the High Court under Article 226 has the same status as the provisions in the Constitution itself. In substance, the contention is that just as a provision in the Constitution like the one in Article 226 cannot be amended by the Governor by issuing an Ordinance, so a judgment under Article 226 cannot be touched by the Governor in his Ordinance making power. It is true that the judgment delivered by the High Court under Article 226 must be respected but that is not to say that the Legislature is incompetent to deal with problems raised by the said judgment if the said problems and their proposed solutions are otherwise within their legislative competence. It would, we think, be erroneous to equate the judgment of the High Court under Article 226 with Article 228 itself and confer upon it all the attributes of the said constitutional provision.'

The Legislature is competent to put an end to the finality of a decision of a Court by an enactment and this does not amount to an exercise of judicial power, (see AIR 1961 SC 1486; AIR 1944 FC 1; Bhaskar Narayan v. Mohammed Alimulla Khan, ILR 1952 Nag 736 : (AIR 1953 Nag 40); Jadao Babu Ji v. Mun. Committee, Khandwa, ILR 1955 Nag 83 : ((S) AIR 1956 Nag 167); Gulabrao v. Pandurang, (S) AIR 1957 Bom 266) (FB). Equally untenable is the contention that the Legislature could not pass a retrospective legislation validating or fixing the rates of minimum wages from a past date. It is now firmly established that subject to any limitation imposed by the Constitution, Parliament and State Legislature can give to their laws, otherwise valid, retrospective or prospective operation (see Union of India v. Madan Gopal, 1954 SCR 541 : (AIR 1954 SC 158); Sundararamier and Co. v. State of Andhra Pradesh 1958 SCR 1422 : (AIR 1958 SC 468); AIR 1961 SC 1486, and AIR 1961 SC 1534.

14. In conclusion, Section 31-A is invalid and the attempt made by it to validate the rates of minimum wagesfixed or revised under Notifications Nos. 306 to 309-XVI-58,dated the 30th December 1958, is totally ineffective. Thesepetitions are, therefore, allowed and the opponents arcrestrained from enforcing Section 31-A or giving effect tothe aforesaid notifications in any way. We make no orderas to costs. The outstanding amount of security depositshall be refunded to the petitioners in each case.


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